9 Fla. L. Weekly Supp. 325a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Where policy contained provision requiring insured to submit to examination under oath as a condition of insurance contract, insured’s failure to appear at examination was a material breach of the contract which relieves insurer from liability under the policy — Insured’s submission to examination under oath is condition precedent with which medical provider must comply before filing suit
CENTRAL REHABILITATION CENTER INC., (a/a/o Marco Lainez), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 00-11631 SP 05. September 20, 2001. A. Leo Adderly, Judge. Counsel: Gregg Pessin, for Plaintiff. Kara O’Donnell, Gregory J. Willis & Associates, Ft. Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT IN FAVOR OF DEFENDANT,UNITED AUTOMOBILE INSURANCE COMPANY
The CAUSE having come before the Court on June 14, 2001 on Defendant’s, UNITED AUTOMOBILE INSURANCE COMPANY’s (“UNITED AUTOMOBILE”), Motion for Final Summary Judgment and Applicable Law in Support Thereof-EUO No-Show and the court having considered the pleadings, evidence of record and argument of counsel:
1. The Court finds the following facts:
(a) The insured, MARCO LAINEZ (“LAINEZ”), entered into an insurance contract with UNITED AUTOMOBILE INSURANCE COMPANY (“UNITED AUTOMOBILE”), effective December 30, 1997 to June 30, 1998. (See policy and Declaration Page, Defendant’s Composite Exhibit “A”.)
(b) LAINEZ was allegedly involved in an automobile accident on May 23, 1998 and sustained injuries for which he sought treatment from CENTRAL REHABILITATION CENTER, INC., (“CENTRAL REHAB”).
(c) That at the time of the accident, there was in full force and effect a policy of insurance issued to LAINEZ which provided personal injury protection (“PIP”), benefits for LAINEZ for alleged bodily injuries sustained in said accident. (See policy, Defendant’s Composite Exhibit “A”.)
(d) LAINEZ executed an Assignment of Benefits which assigned insurance benefits of UNITED AUTOMOBILE INSURANCE COMPANY (“UNITED AUTOMOBILE”), and directed payment, to CENTRAL REHAB. (See copy of assignment of benefits attached and made a part hereof as Defendant’s Exhibit “B”.)
(e) The Insured, LAINEZ, received proper notification of an examination under oath, either independently or through counsel, on two separate occasions and failed to appear for both.
(f) The first appointment was scheduled for September 18, 1998 at 2:30 p.m. (See Defendant’s Exhibit “C”.) Notice of this appointment was sent on August 26, 1998, thus providing reasonable notice to LAINEZ.
(g) LAINEZ failed to appear and failed to provide UNITED AUTOMOBILE with any reason for his non-attendance.
(h) As a courtesy, a second appointment was re-scheduled for October 23, 1998 at 2:30 p.m. (See Defendant’s Exhibit “D”.) Notice of this second appointment was sent on September 30, 1998, again providing reasonable notice to LAINEZ.
(i) LAINEZ failed to appear for this second appointment and failed to provide UNITED AUTOMOBILE with any reason for his non-appearance.
(j) Pursuant to the insurance contract with UNITED AUTOMOBILE, the insured had a duty to attend the scheduled examination under oath. The subject policy states:
“As soon as practicable, the person making claim (including any assignees of the injured party) shall give to “us” written proof of claim, under oath if required, and submit to an examination under oath by any person named by “us” when or as often as “we” may reasonably require, at a place designated by “us” within a reasonable time after we are notified of the claim:…”
See Policy, page 14 of 20, Section 1: Part “E” Personal Injury Protection: Condition, Paragraph #3, attached hereto as Defendant’s Exhibit “A.”
(k) Under this same section, the policy states,
“Action against the Company.” “No action shall lie against `us’; unless as a condition precedent thereto, there shall have been full compliance with all terms of this insurance policy, nor until 30 days after the required notice of the accident and reasonable proof of claim has been filed with `us.’ ”
(l) Despite this requirement, insured did not appear for the scheduled examination under oath prior to the initiation of the instant lawsuit, thereby breaching the terms and conditions of the policy. (See affidavit of Teresa Rodriguez attached hereto as Exhibit “A.”)
(m) Plaintiff’s failure to attend said examination under oath prior to the initiation of the instant lawsuit precludes coverage under the policy.
2. The Court makes the following conclusions of law based on the foregoing undisputed facts:
(a) The examination under oath is condition precedent to filing suit against the insurance company. The Court in Goldman v. State Farm Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995) held that a policy provision requiring submission to an examination under oath is a condition precedent to coverage and the insurer is not required to show that it was prejudiced. See, Goldman at 304. Candanosa v. U.S. Security Insurance Company, 3 Fla. L. Weekly Supp. 566 also addresses this issue and holds that, “the policy provision that no suit can be sustained until full compliance with all terms of the policy is a condition, as is the insured’s agreement to submit to an examination under oath.” The Court in Bowman v. Armor Insurance Co., 4 Fla. L. Weekly Supp. 375 (Fla. 13th Cir. 1996) held that “Bowman’s failure to submit to the recorded statement or examination under oath amounts to a failure to comply with a condition precedent to receiving benefits under the insurance policy.”
(b) Based on the foregoing, the Defendant was entitled to schedule the examination under oath of the Plaintiff. The Plaintiff’s failure to appear prior to the initiation of the instant action was a material breach of the contract, which relieves Defendant from liability under the insurance policy, and is also a condition precedent, which the Plaintiff must comply with before he can file suit.
(c) Accordingly, there being no genuine issue of material fact as to the Insured’s, LAINEZ’s, failure to attend the examination under oath, and said failure amounting to a material breach of the contract which relieves Defendant from liability under the insurance policy, the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, is entitled to Final Summary Judgment as a matter of law.
(d) The Court finds that it is undisputed that coverage for LAINEZ by UNITED AUTOMOBILE is precluded based upon the failure to attend an examination under oath. It is, therefore,
ORDERED AND ADJUDGED that:
A. UNITED AUTOMOBILE’s Motion for Final Summary Judgment for EUO No Show is GRANTED in all respects.
B. Final Judgment is hereby rendered in favor of Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, and against Plaintiff, CENTRAL REHABILITATION CENTER INC.
C. Plaintiff, CENTRAL REHABILITATION CENTER INC. shall take nothing by this action and Defendant, UNITED AUTOMOBILE INSURANCE COMPANY shall go hence without day.
D. This Court reserves jurisdiction to tax attorney’s fees and costs, if authorized by law.
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